Carbery v Warringah Rugby Club Ltd

Background

1. The appellant Mr Paul Carbery was the landlord and the respondent the tenant (hereafter the Club) of premises in Bayview. The Club entered into a residential tenancy agreement with Mr Carbery on the understanding that four of the Club's young football players (usually referred to in correspondence and at the hearings as "the Boys") would occupy the premises in order to be close to training facilities.
2. It appears that the Club then entered into its own tenancy agreement with the Boys, which attached a list of conditions required by Mr Carbery. Chief of these was that the premises not be a "party house", if for no other reason that Mr Carbery occupied "the other half of the house". Twenty three such conditions were set out including alcohol, illicit drugs, parties and social activities involving non-residents being strictly prohibited: condition xiii.
3. The tenancy commenced on 10 June 2019 with a weekly rental of $800.00. The residential tenancy agreement specified a fixed term to expire on 9 June 2020, and the Club vacated the premises on 10 June 2020.
4. In his application filed with the Tribunal, Mr Carbery sought orders for the payment of compensation following the termination of the tenancy. It appears he originally sought orders for the payment of $58,217.72, but agreed at the hearing to accept the jurisdiction limit of the Tribunal of $15,000.00.
5. In this respect, we note that the jurisdictional limit of the Tribunal in relation to compensation that may be ordered is actually $15,000.00 together with the bond: see Reg 40 of the Residential Tenancies Regulation 2019 (NSW).
6. However, while the Club provided a bond to Mr Carbery, he did not lodge it as required with Rental Bond Services pursuant to s 162(1) of the Residential Tenancies Act 2010 (NSW) (RT Act). While various reasons were advanced for his failure to do so, he is obliged under the RT Act to lodge the bond and the failure to do so is an offence.
7. In the proceedings before the Tribunal, Mr Carbery filed and served a large volume of documentary material. Many of the documents relied upon had peripheral, if any, relevance to the real issues in dispute in the proceedings. Under s 36 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) parties (and representatives of parties) have a duty to assist the Tribunal to achieve the just, quick and cheap resolution of the real issues in dispute in the proceedings. Although Mr Carbery may have subjectively believed all of his documents were relevant, many clearly were not relevant, and his reliance on such voluminous material made the task of the Tribunal in achieving the just, quick and cheap resolution of the real issues in dispute significantly more difficult.
8. In its decision, the Tribunal ordered the Club to pay a total of $3,452.56 for rental arrears ($1,825.00), cooktop repairs ($408.56) and for damage to the carpet ($1,219.00).

Notice of Appeal - Grounds of appeal

1. Mr Carbery states his grounds of appeal as follows: 1. Damage to property not properly considered on independent expert reports. 2. Acceptance of verbal conjecture/misleading statements made by respondent which were accepted by presiding Member as factual. 3. Loss of rent refused by not taking appropriate action to mitigate losses which despite property being uninhabitable, that advertising and prospective tenant inspections by Real Estate Agent was not considered and comments from inspections not taken into consideration. 4. Damage reports by Insurance company assessor and other expert opinion ignored by member. 5. Misleading/convoluted statements made by respondent during hearing being given weight without evidence. 6. General disregard of details and documentation contained in original and supplementary submissions.

The Club's Reply

1. The Club states in its Reply that: The initial hearing with Tribunal covered all issues raised by the appellant in his claim in fair manner based on the evidence supplied. The Appellant failed to provide the respondent with a condition report during the term of the lease despite the tenant completing a report and despite several requests for a report. The failure of the Appellant to provide a copy of the condition report at the time the final inspection was carried out has resulted allegations of damage that were not raised when the final inspection was carried out. Despite the lack of a condition report which was not received until 13 July, the respondent approved the quote for cleaning of the premises on 1 July. The Appellant failed to lodge the bond with the Rental Bond Board The Respondent strenuously denies any responsibility for the damage claimed by the Appellant other than what the Tribunal ordered in their original orders and which the Respondent has paid.

Nature of an appeal

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have undertaken that exercise. To the extent that Mr Carbery submits that the reasons were inadequate we consider that he is raising an error of law for which leave to appeal is not required.
4. It is convenient to deal with that matter immediately.
5. The Appeal Panel stated in Camilleri v Eastlake [2018] NSWCATAP 176 at [26]: It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].
6. In NSW Land and Housing Corporation v Orr [2019] NSWCA 231, Bell P (with whom Ward JA agreed) identified the applicable principles as follows (at [66]-[77]: 66. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley). 67. Whilst all decision makers, be they judges or tribunal members, should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision (as Gleeson CJ explained extra-judicially in "Judicial Accountability" (1995) The Judicial Review 117 at 122), as Basten JA said in Resource Pacific at [48], "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality." His Honour's identification of separate parameters of quantity and quality is, with respect, a useful one. 68. In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]. 69. An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel): see [30] above. 70. As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. 71. That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. 72. Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. 73. In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member. 74. In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 75. To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)" (emphasis added) 76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77. These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291.
7. We consider that the Tribunal conformed with the expectation to provide reasons that surpassed the minimum acceptable standard. The structure of the Decision was entirely orthodox, and the member set out the relevant principles to be applied and made relevant findings of fact, albeit briefly. There were at least ten items of compensation claimed by Mr Carbery, and in our view the reasons sufficiently dealt with each.
8. Accordingly, any appeal based on inadequacy of reasons is dismissed.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. Even if an appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Mr Carbery's submissions

1. Mr Carbery's submissions are lengthy. His principal submissions are as follows: 1. the 276 pages of documents provided to the Tribunal have not been considered correctly or in accordance with the RT Act, and relevant information was disregarded which proves "that the [Club's] submission cannot be relied upon"; 2. the Tribunal placed great weight on "coincidental" information obtained from an unrelated matter that was previously decided by the Tribunal; 3. the Tribunal accepted calculations of outstanding rent out of context; 4. the Tribunal failed to consider his financial circumstances and concluding that he could afford to have the damages repaired and mitigate mental losses; 5. despite expert opinion of insurance assesses and other experts, the Tribunal relied on the testimony of the respondent and referred to photographs of an early matter concerning the bathroom tiles and relied on the respondent's opinion that there was a structural problem with the bathroom floor that any written assessment or opinion of experts in this field confirm the opinion; 6. the "the immense amount of information" in relation to the matter made it very difficult for anyone unless they had the opportunity to examine the evidence to arrive at the correct decision.
2. In the circumstances, Mr Carbery asked the Appeal Panel to reconsider all damages claimed. To the extent necessary to consider whether an error of law has occurred, or whether an error other than an error of law sufficient to grant leave appeal has occurred, we have considered the issues raised.

The Club's Submissions

1. The Club's submissions can be summarised as follows: 1. the Club did not receive a condition report for the premises during the term of the lease and the condition report of Mr Carbery dated 10 June 2019 which was included in Mr Cadbury's materials was never provided to the club 2. the Club's representative, Ms Sue Barry-Cotter, a solicitor, attended the final inspection with Mr Carbery's real estate agent from Belle Property. The only items raised during the final inspection or a crack in the cooktop, one mark on the carpet, items in the linen cupboard and kitchen which Ms Barry-Cotter removed, a mattress on the back deck and the general cleanliness of the cupboards in the premises in the bathroom. At the time, Ms Barry-Cotter agreed that the property would be professionally cleaned at the Club's expense; 3. as to delays in repairs to the premises, Ms Barry-Cotter says there any delay was attributable to delay in the quote and provided to her by Belle Property; 4. as to the damage to the bathroom, the Club denies the damage and notes in particular there was no discussion of any damage to the bathroom at the time on the final inspection. It also submits that the quotation relied on by Mr Carbery for repairs was dated more than 10 weeks after the Club had vacated and was never provided to it until the hearing before the Tribunal.

Consideration

1. We commence our consideration of the appeal by noting that in these reasons we have considered the 300 pages of materials filed by Mr Carbery together with his oral submissions and all the matters he raised in the Notice of Appeal. It is beyond the scope of these reasons to deal with each and every matter raised by Mr Carbery. The authorities state that it is not necessary for us to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443.
2. The gravamen of Mr Carbery's submissions is that the Tribunal either did not read his materials or ignored them. He says that if the Tribunal had read his materials, particularly in relation to the renovation of the bathroom, it could not have come to the decision that it did.
3. As noted, Mr Carbery, asks the Appeal Panel to reconsider all damages he had claimed.
4. At the commencement of the hearing we discussed with Mr Carbery the heads of damage that he was agitating on the appeal. After some confusion, he confirmed that the matters he was pressing were the carpet (Decision at [21]), the bathroom renovation (Decision at [22]), lost rental (Decision at [26]), administrative costs (Decision at [27]) and insurance costs (Decision at [28]). All those matters were the subject of the Decision.
5. In addition, Mr Carbery claimed that the Tribunal failed to deal at all with his claims to be reimbursed for electricity charges ($1,482.94) and for his loss of use of the bathroom ($800.00).

Bathroom renovation

1. Pursuant to cl 17 of the residential tenancy entered into between the parties, when giving vacant possession to Mr Carbery, the obligation of the Club was, relevantly, to leave the premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy: cl 17.1. Such an obligation is also reflected in s 51(3)(b) of the Residential Tenancies Act 2010 (NSW) (the RT Act).
2. This obligation means that the tenant, for the term of the residential tenancy agreement, is bound to keep the premises in a satisfactory condition, but is not liable for damage or deterioration of condition due to fair wear and tear. If any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the exception. Fair wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces: Regis Property Co Ltd v Dudley [1959] AC 370 (referred to with approval by the NSW Court of Appeal in Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224).
3. In Pancio v Crompton & Jennings [2015] NSWCATAP 110 the Appeal Panel at [24] applied the principles set out in Adoncello v Sazdanoff [2006] NSWCTTT 577 where the Tribunal referred with approval to the following statement in Fitzpatrick v Wu (RTT 01/16425): "… It is the concept of "fair wear and tear " which causes the disputes in these matters and in particular whose standards determine whether wear and tear is fair" ... Given that the section is intended to have application to premises generally in NSW, Parliament could not have intended that the standard of "fair" wear and tear be the subjective standard of each individual landlord. Presumably Parliament had in mind something more objective in nature. In the absence of any guidance on the point from the Supreme Court and having regard to the apparent absence of consideration on the point in other decisions of the Tribunal, the present Tribunal takes the view that the requisite standard is that commonly prevailing among the tenants of comparative premises and that the issue should not be approached from the standpoint of the fastidious and obsessive landlord."
4. The first task for the Tribunal was to determine the condition of the premises at the commencement of the tenancy. This is done through evidence which should be constituted by an ingoing condition report (ICR), preferably signed by both parties, which sets out the condition including the cleanliness of each room of the premises and the external areas. Absence of an ingoing inspection report does not preclude a landlord bringing a claim for compensation due to the condition of the premises at the end of the residential tenancy, but the absence of an ISR goes to the weight of evidence: Hall v Hawkins [2015] NSWCATAP 197 at [59]-[66].
5. These days, contemporaneous photographs and even videos form part of an ICR. In this matter, the ICR relied on by Mr Carbery indicates that the bathroom was "newly refurbished" and "clean", "undamaged" and "working" in all respects, save that there was a broken plastic hook on the door frame and "filler" to the left side of the "vanity/wall" to be done.
6. The ICR was signed by Mr Carbery and dated 10 June 2019. The Club claims that the ICR was never provided to it. Mr Carbery claims that it was available, and that he was waiting for the Club to nominate a person to complete it. Be that as it may, the ICR was never adopted by the Club: see [11] of the Decision.
7. The next step to be undertaken by the Tribunal is to identify the condition of the premises at the conclusion of the tenancy. Similarly, this is done by the completion of an outgoing condition report (OCR), preferably completed at the conclusion of the tenancy in the presence of both parties at a final inspection. In this matter, the Tribunal found at [12] of the Decision: Mr Carbery, Ms Barry-Cotton [sic - Cotter] and a real estate agent appointed by Mr Carbery attended the property together to perform an outgoing inspection. There was no outgoing condition report available for checking at this inspection. Ms Barry-Cotton [sic - Cotter] and the agent went from room to room looking at the state of the property. She says the matters raised with her were: • a crack in the cooktop, • Items left in the linen and kitchen cupboards, which she removed and put into the garbage bin • small marks on the walls which she would normally classify as normal wear and tear • one small burn mark on the carpet.
8. The Tribunal's findings in relation to the bathroom are then set out at [22] to [25] of the Decision as follows: 22. The landlord has claimed the cost of very significant renovation works including "complete renovation of the bathroom due to waterproofing purposes" and "complete property to be internally painted including walls, ceiling, doors and wardrobe" (Unique Building Partners). 23. The landlord says some floor tiles in the bathroom with cracked and chipped this acetate in the bathroom renovation. However, I note the photographs produced by the landlord in a claim against his previous tenant, listed for hearing in the Tribunal on 10 March 2020 so pink bathroom floor tiles which are cracked and chipped. The landlord says resin was applied to the tiles prior to the new tenants moving into the property. The landlord maintains the tenants are responsible for the cracks and chips now seen in the tiles. I find it too much of a coincidence to accept the tenants as well as the previous tenants miss treated the bathroom in a manner that would lead to cracked tiles. I spent the more likely explanation of cracking is a structural problem. I do not find the tenants responsible for this issue. 24. The marks on the walls are of the modern nature (according to photographic evidence produced) I would not justify complete repainting of the interior is clean. Furthermore, I note that the list of items compiled by the landlord (p 41) following his vacate inspection by no reference to tobacco smells affecting the property. The tenant did not mention this as an issue raised by the agent at the inspection. 25. I will not allow any amounts for the cost of the renovation works.
9. The reference to "p 41" is a reference to a document titled "outgoing inspection report", prepared by Mr Carbery on or about 18 June 2021, the day after the final inspection. And here we note that that inspection took place one week after the Club had provided vacant possession of the premises.
10. In relation to the Bathroom Mr Carbery's document states: Bathroom (nearly refurbished at the start of tenancy). 1. One pieces of toilet seat left in bath.??? 2. Two windows and Flyscreens require cleaning. 3. Three very dirty with personal items of tenants in Cupboards. 4. Unable to ascertain damage of any until thoroughly clean. 5. Wall light globe burned out not replaced.
11. We discussed with Mr Carbery the fact that his own note, relied on by him at the hearing before the Tribunal, did not identify any issues warranting renovation of the bathroom. His response was that the bathroom was so dirty it was impossible to know. Ms Barry-Cotter said that the bathroom was not "that filthy" as claimed.
12. Even if this this document could be accepted as an outgoing condition report (which we think it should not, as it was not prepared at the time of the final inspection, not adopted by the Club, and is inconsistent with the observations made by Mr Carbery's agent to Ms Barry-Cotter at the time of the final inspection), there was nothing in that document which suggests in any way that the bathroom required total renovation and re-painting. Indeed, a quotation obtained by Mr Carbery from Australian Building & Construction Developments dated 12 February 2021 in evidence before the Tribunal states that "there appears to be no structural damage to the main bathroom. Only damage seems to be from heavy impact of items falling on tiles".
13. As for the report of Unique Building Partners (UBP) referred to in the Decision, its Causation Report was dated 8 September 2020. Relevantly it attaches photographs which show some scratches to the bathroom floor tiles and a damaged toilet seat.
14. The probative evidence before the Tribunal demonstrated that at the time of the final inspection the bathroom had some cracked tiles, a broken toilet seat, dirty windows and flyscreens, and some personal items of the Boys. In our view, all this evidence would establish was damage falling into the category of "fair wear and tear". We see no possible way that it would warrant the complete renovation of the bathroom.
15. We note that the summary section of the UBP Causation Report relevantly states: Insured Bathroom has suffered damages consistent with the claimed event and will have to be completely renovated due that the floor tiles have been damaged by impact, impact cause is unknown.
16. but we find that reasoning, such as it is, to be unpersuasive, and no basis to warrant renovation of the bathroom. Again, the UBP Causation Report was one piece of evidence. The opinion expressed that that there was a direct causal nexus between the asserted "damage" to the bathroom during the course of the tenancy by the sub-tenants contains inadequate detail to form the basis of a factual finding, and is inconsistent with the other evidence before the Tribunal in respect of the nature and degree of the asserted damage.

Lost rental

1. In submissions to the Tribunal dated 26 October 2020, Mr Carbery sought an amount of $15,911.42 for "rental arrears". However, Mr Carbery explained to us that that only $1,825 related to rental arrears, and that the balance, $14,086.42, related to lost income.
2. As noted above, Mr Carbery's ground of appeal on this issue was: Loss of rent refused by not taking appropriate action to mitigate losses which despite property being uninhabitable, that advertising and prospective tenant inspections by Real Estate Agent was not considered and comments from inspections not taken into consideration.
3. The Club paid Mr Carbery rent of $800 per week. Mr Carbery was unable to rent the property again for some time (although we note that there was no evidence about when a new residential tenancy agreement was signed and a new tenancy commenced) having reduced the rental to $725 per week. At a weekly rental of $800.00 per week, the claim of $14,086.42 amounts to a claim of approximately 17 weeks' of lost rent. At a weekly rental of $725.00 per week, the claim of $14,086.42 amounts to a claim of approximately 19 weeks' of lost rent.
4. Mr Carbery says that the delay in finding new tenants was caused by the Club's constant delays to attend to repairs and the Club ignoring his correspondence, circumstances which were exacerbated by his impecunious financial position and his poor health. He says that the Tribunal overlooked the evidence of his agent of 15 August 2020 (p 208 of bundle) that: As the property was left in such a state, initially we were unable to even advertise or get a photographer through, until the property was cleaned. We were able to start advertising the property only on the 15th July 2020. Since 15th July, due to rubbish being left on the property, damage to carpet, damage to the cooktop (which is a necessity in a rental), chipped tiles in bathroom which is a hazard to anyone who happens to be barefoot, smell of smoke throughout the house and various other issues the property in its current condition has put a lot of tenants off. We are advertising prospective tenants, that all these issues will be rectified, but due to the items not being currently completed a lot of prospective tenants are unable to see past this.
5. In relation to this issue the Tribunal stated: The landlord has a duty to mitigate their costs. There was no reason why he could not proceed to have the cleaning done and the cooktop repaired quickly. The issue of who would pay for that could be resolved after the work was done. This would be the usual course. I will not allow the loss of rent claim.
6. We see no error in the Tribunal's reasoning. We are not persuaded that the decision on this issue was against the weight of the evidence or in the circumstances not fair and equitable. As for there being additional evidence now available which was not available, we reject Mr Carbery's submission that we ought to take into account a further undated letter of Callum Docker of McGrath Pittwater. In our view, that evidence could have been made available at the time of the hearing. In other words, we are not satisfied that it was not reasonably available at the time of the hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111.

Administrative costs

1. Two "administrative costs" were claimed by Mr Carbery, both of which were rejected by the Tribunal. The first was his costs of preparing a rental ledger. He had sought compensation of $3,400.00, which he said was based on a bookkeeper's hourly rate of $60.00.
2. The second was his costs of $600.00 for engaging a Real Estate agent.
3. The Tribunal's reasons on these matters appear at [27] of the Decision as follows: The landlord is obligated to keep a rent record, that is a record of rent receipts this is not a matter for a compensation claim. The landlord also claimed costs of engaging a real estate agent. This is a matter for him, not a claim which can be made against the tenants.
4. We agree. Section 37 of the RT Act provides: 37 Rent records (1) A landlord or landlord's agent must keep a record of rent received under a residential tenancy agreement (a rent record). (2) A rent record may be kept in any form, and must contain any particulars, prescribed by the regulations for the purposes of this section. (3) A landlord or landlord's agent must, within 7 days of a written request by the tenant, provide a written statement setting out the particulars of the rent record for a specified period. (4) This section does not require a landlord or landlord's agent to provide a written statement for a period to a person if the landlord or agent has previously provided a written statement for the same period to the person. (5) Subsections (3) and (4) are terms of every residential tenancy agreement.
5. Mr Carbery accepted that he was under an obligation to keep a rent record or ledger. However, he said that in this instance keeping such a record was particularly complicated, as he was receiving rent from each of the four Boys occupying the premises, and this was exacerbated when one or other of the Boys was replaced by another.
6. We see no error in the Tribunal's reasoning, and in any event note that Mr Carbery agreed to receiving the individual rents from the Boys and not in a lump sum from the Club.
7. As to the costs of retaining a real estate agent, again we consider that the Tribunal was correct. It cannot be said that this is a claim for compensation arising by some breach of the Club of the residential tenancy agreement.

Insurance

1. Apparently Mr Carbery subsequently made a claim with his insurer in respect of damage to the property. The excess payable was $1,100.00, which sum he sought from the Club.
2. The Tribunal simply stated that there was no basis for this claim (Decision at [28]).
3. While short perhaps on detail in its reasoning, the Tribunal was correct. The first point is that any claim for damage must arise from a breach of the residential tenancy agreement. Damage which is compensable falls into one of two categories identified in the ancient authority of Hadley v Baxendale (1854) 9 Ex 341. The first category (or limb) is comprised of damages which naturally arises from the breach of contract according to the usual course of things. The second limb is comprised of damages which are within the reasonable contemplation of the parties at the time of contracting as the probable result of a breach.
4. We see no reason why either of these limbs might be established. There was no evidence which might satisfy the second limb. As to the first limb, the insurance claim needs to follow a breach of the residential tenancy agreement by the Club. There is no such identifiable breach by the Club in this instance.

Unpaid electricity, $1,482.00

1. These were the two matters that Mr Carbery claimed had been overlooked by the Tribunal entirely.
2. We note that these claims appear in his submissions of 26 October 2020 to the Tribunal. However, just because an item appears in an application or points of claim, that does not necessarily mean that the matter was pursued at the hearing.
3. Neither party could tell us with any certainty whether or not these matters were raised before the Member, although Ms Barry-Cotter said that she thought that the claim for electricity charges had been dismissed as being out of time. But that does not appear to be correct as, although there are time limits in the residential tenancy agreement for the provision of water charges to the Club by Mr Carbery, there is no similar provision in relation to electricity invoices.
4. In the absence of a transcript of the hearing, or even a sound recording, being provided by Mr Carbery as directed, we are not satisfied on the balance of probabilities that these items were raised before the Tribunal.
5. In addition, we note that the relevant electricity invoices were never provided to the Club, the Boys, the Tribunal or the Appeal Panel.

Conclusion

1. No error of law has been established, for reasons expressed earlier.
2. To the extent that leave is required in respect of any matter agitated by Mr Carbery, we would not grant leave. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
3. In addition, the appellants grounds included the following; 2. Acceptance of verbal conjecture/misleading statements made by respondent which were accepted by presiding Member as factual. 5. Misleading/convoluted statements made by respondent during hearing being given weight without evidence.
4. These grounds cannot be established in the absence of evidence in the form of a transcript of the proceedings before the Tribunal.

Orders

1. The Appeal Panel orders: 1. Application for leave to appeal dismissed. 2. Appeal otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2021